No ruling after withdrawal of award for lot 1 (bedroom furniture) — withdrawal final, procedural indemnity at base amount
SRL JEE-BEE's appeal against the award of lot 1 of a furniture supply contract for a care home lost its object after the definitive withdrawal of the contested decision, with application of Article 30 §5 to rule on both suspension and annulation in a single judgment.
What happened?
The Association intercommunale Générations Thierache awarded lot 1 (bedroom furniture) of a public supply contract for care home furniture (CSC n°2024-P01) to SA MOMENTS FURNITURE on 29 May 2024. SRL JEE-BEE filed for suspension under extreme urgency together with an annulation appeal on 13 June 2024. On 19 June 2024, the respondent withdrew the contested award decision. The withdrawal was notified to all tenderers by registered letters posted on 20 June 2024, indicating the available remedies with their forms and time limits. No appeal was filed against the withdrawal within the prescribed time limit, making it final. The Council applied Article 30 §5, which allows a single judgment on both suspension and annulation when the contested act is withdrawn, without the need for a request to continue proceedings. The applicant had requested an increased procedural indemnity of €1,848 (€1,540 + 20%), but the Council found no grounds for exceeding the base amount. Under Article 67 §2, paragraph 3 of the procedural rules, no increase is due when the contested act has been withdrawn. The indemnity was set at the base amount of €770. Costs — €200 court fee, €24 contribution and €770 procedural indemnity — were charged to the respondent.
Why does this matter?
This ruling illustrates the combined application of two procedural mechanisms when the contested act is withdrawn. First, Article 30 §5 allows the Council to rule on both pending suspension and annulation proceedings in a single judgment without a request to continue proceedings. Second, Article 67 §2, paragraph 3 caps the procedural indemnity at the base amount when the loss of object results from withdrawal, even if the applicant requests an increase.
The lesson
As a contracting authority, withdrawing a problematic decision during proceedings may be pragmatic, but you will bear the costs as the unsuccessful party. Notify all tenderers of the withdrawal by registered letter with indication of remedies. As a tenderer, be aware that the procedural indemnity is capped at the base amount (€770) when the contested act is withdrawn — a request for increase will be refused.
Ask yourself
As a contracting authority: has the withdrawal been notified to all tenderers with indication of remedies? Has it become final? As an applicant: have you considered appealing the withdrawal itself? Are you aware the procedural indemnity is limited to the base amount when the act is withdrawn?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →